Wednesday, March 31, 2010

With the NFL and NFLPA engaged in what is likely to be protracted collective bargaining, the opportunity exists for the league and the union to examine their drug-testing program and make improvements based on experience. There are improvements that can be made in a number of different areas. Part One of my proposal addresses the arbitration / hearing process by which player appeals are heard and decided by the NFL.

Despite the repeated call for the NFL to outsource its drug-testing program to the World Anti-Doping Agency (WADA) or the United States Anti-Doping Agency (“USADA”) (mostly by those who have a stake in WADA and/or USADA), I do not believe that such a step is necessary. The NFL simply does not need to accept the politics of anti-doping that are inherent in adopting WADA or USADA.

Instead, the NFL and the NFLPA can and should learn from their own experiences, as well as from experiences that others have had with the WADA/USADA system. The NFL and NFLPA should then make appropriate improvements to their own program. This is a more direct way to improve the current system.

Having personal experience with the NFL, WADA and USADA programs, among others, there are certain changes that I would recommend that would improve the fairness and quality of the NFL’s drug-testing program.

Problem: Perceptions of partiality, conflict of interest

John Ruger, the Athlete Ombudsman for the United States Olympic Committee, has convincingly made the argument at numerous conferences that it is essential for anti-doping programs to be successful. He argues passionately that in order for these programs to be successful, it is not only important that the tests be accurate, it is equally important that the athletes believe that the system is fair. With respect to arbitrators or hearing officers, it is frequently stated that they must not only be impartial, but they must also appear to the outside world to be impartial. Part of this “appearance of impartiality” is the lack of any actual or potential conflicts of interest.

The current NFL POLICY ON ANABOLIC STEROIDS AND RELATED SUBSTANCES, at paragraph 10 (Appeal Rights), provides that “The League will designate a time and place for a hearing, at which either the Commissioner or his designee will preside as Hearing Officer … the Hearing Officer will issue a written decision, which will constitute a full, final, and complete disposition of the appeal and which will be binding on all parties.” In practice, the Commissioner’s designee as Hearing Officer will be Jeff Pash (NFL Executive Vice-President), Jay Moyer (former NFL Executive Vice-President), or Harold Henderson (NFL Executive Vice-President).

Therefore, under the current system, the NFL imposes a penalty, the player appeals the penalty, and then the NFL itself, through one of its current or former Vice Presidents, determines if its prior decision to suspend the player was correct: the NFL is the “judge, jury and executioner.”

Current Example: Judge Magnuson, in the Starcaps litigation, questioned the impartiality of Hearing Officer Jeff Pash due to his position as NFL Executive Vice-President. The Hearing Officers under the current NFL drug-testing policy who serve as executive officers of the NFL have a clear conflict of interest in being asked to determine the validity of the league’s suspension of players. Whether or not they are actually impartial is almost irrelevant, because the outward appearance of partiality is unquestionable.

Proposal

The first, easiest and most obvious change is an adjudication system in which independent arbitrators decide the merits of all appeals. With arbitrators who are completely independent of the NFL and the NFLPA, the most obvious partiality objection is immediately eliminated.

The League does not need to outsource its drug-testing program to USADA to achieve this. Rather, the league could simply use the same arbitrator pool that USADA uses in its adjudication process. Admittedly, this type of change would require an amendment to the NFL drug testing policies. However, the amendment itself would be relatively simple to draft. For example, paragraph 10 of the NFL POLICY ON ANABOLIC STEROIDS AND RELATED SUBSTANCES could be amended to read as follows:

“As is more fully outlined in Appendix D, any player who is notified by the League Office that he is subject to discipline for a violation of this Policy is entitled to an appeal.

The League will designate a time and place for a hearing, at which a Panel of three Arbitrators from the NFL Arbitrator Pool will preside as the Hearing Panel. The NFL Arbitrator Pool shall consist of the Court of Arbitration for Sport (CAS) Arbitrators who are citizens of the USA. The Hearing Panel shall be selected as follows:

(i) The NFL shall send to the player a list of all names of persons in the Arbitrator Pool; and shall simultaneously designate one (1) arbitrator from the Arbitrator Pool.

(ii) Within five (5) calendar days following receipt of the Arbitrator Pool list provided by the NFL, the player shall designate one (1) arbitrator from the Arbitrator Pool.

(iii) The two (2) arbitrators chosen by the NFL and the player respectively shall choose the third arbitrator from among the remaining members of the Arbitrator Pool. The NFL shall furnish to the party-appointed arbitrators the Arbitrator Pool list. If the two (2) arbitrators chosen by the parties are unable, within five (5) calendar days following their selection, to choose the third arbitrator, then the party-appointed arbitrators shall so notify the NFL which shall notify the player. Within five (5) days of receipt of notice from the NFL that the party-selected arbitrators are unable to reach or have not reached agreement, the NFL and the player shall then each strike up to one third of the Arbitrator Pool and rank the remaining members in order of preference. From among the persons who have not been stricken by the parties, and in accordance with the designated order of mutual preference, the NFL shall invite the acceptance of one (1) arbitrator to serve. The third arbitrator shall serve as Chair of the Hearing Panel.

Arbitrators shall be compensated at a rate consistent with the current CAS rates. Arbitrator fees shall be divided and paid in equal shares by the NFL and the NFLPA.

The player may be accompanied by counsel and may present relevant evidence or testimony in support of his appeal. Additionally, the NFL Players Association may attend and participate notwithstanding the player's use of other representation.

After the record has been closed, the Hearing Panel will issue a written decision, which will constitute a full, final, and complete disposition of the appeal and which will be binding on all parties. (If appropriate, a summary ruling may be issued, followed by a formal written decision as time permits.) Pending completion of this appeal, the suspension or other discipline will not take effect.”

Modifying the adjudication system in this manner provides for an appeal process that is free from conflicts of interest, and should eliminate the appearance of any actual or perceived partiality. Once both sides agree that independent arbitrators would improve the perceived fairness of the system, rewriting the rules themselves to reflect this change is fairly straightforward, as demonstrated above. This modification also satisfies most of the objections of those who repeatedly argue that the NFL should simply outsource its drug-testing program to WADA or USADA.

In Part Two, I will address the League’s system of fixed sanctions and propose a modified sanction system that is more equitable to the players.

I am starting a blog. Why? I want to contribute an additional forum for ideas, discussion, healthy debate & information exchange on current topics in sports law, sports business and sports in general. Plus, blog is a funny sounding word. Say it! Blog …

This is how I how I see it working.

What: This blog is designed to inform and engage you on the above topics (sports law, sports business and sports in general).

Who: I will write regular blog entries on current topics in sports law and sports business that I find interesting, where I think that my opinion or comments might be interesting to others. Feel free to comment, get in on the conversation, ask questions, etc.

Ground Rules: (of course there are rules!) I encourage, invite, welcome and want comments ---whether you agree or disagree - so long as (1) you are willing to include your name (actual name, no screen names please) with the comment (Blog alert: I personally find anonymous comments or comments by those hiding behind “screen names” to be frustrating and have little use for them), and (2) the comment adds value. How will value be determined? It’s my blog. I’ll be “the decider.”

Introductions and rules aside, it is my sincere hope that others will find this blog to be as valuable a resource as I have found the blogs I visit to be.

FYI: Many of the blogs I visit are written by established journalists. I believe blogs allow these journalists to write in greater depth than they might otherwise be able to or even to delve into topics that editors may view as too specialized for their readership. For example, check out Alan Abrahamson’s blog (http://blogs.universalsports.com/olympics/alanabrahamson).

Other blogs provide an opportunity for distinguished subject-matter experts to share their insightful opinions with an interested audience who might not otherwise have access to those opinions. In the area of sports law, the Sports Law Blog (http://sports-law.blogspot.com/) fits this description.

Here are my stats: I have been a sports lawyer for over 10 years (and a lawyer for 20), with a particular area of emphasis in the area of anti-doping.

I also teach sports law as an Adjunct Professor at Southwestern Law School in Los Angeles, California.

I have defended over 70 athletes in doping cases around the world. I have handled these cases before the Court of Arbitration for Sport, American Arbitration Association, National Football League, Major League Baseball, Association of Tennis Professionals (“ATP”), Nevada State Athletic Commission, California State Athletic Commission, America’s Cup, and others. I have also represented numerous athletes in civil lawsuits, including products liability lawsuits arising from contaminated supplements that lead to doping suspensions. I have had the opportunity to represent some of the greatest athletes in the world, and have worked both with and against exceptional lawyers around the world. I also love dogs, but only large and athletic ones.

My expertise in the area of sports law has been noted by the Los Angeles Times (“one of the leading sports lawyers in the United States”), USA Today (“Athletes accused of cheating find perfect advocate”), San Jose Mercury News (“Defense never rests if Jacobs takes case, athletes want him when USADA calls”), Wall Street Journal (“A bad summer for athletes is good business for Jacobs”) and the Christian Science Monitor (“For athletes accused of taking drugs, a Perry Mason of their own”), among others.